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2000 DIGILAW 242 (CAL)

STATE OF WEST BENGAL v. AMARNATH HAIT

2000-05-15

A.K.MATHUR, ALTAMAS KABIR

body2000
A. K. MATHUR, CJ. ( 1 ) -THIS is an appeal directed against the order dated 27. 7. 1995 passed by the learned single Judge in C. R. No. 13609 (W) of 1993 thereby the learned single Judge has directed respondent that the petitioner be given appointment to a post of identical nature, if the post falls vacant within one year and the age would not be a bar for his appointment. If no post is available, the learned single Judge further directed the respondent No. 2 to create a supernumerary post for him till a vacancy occurs and the direction to be executed within a period of one year. However, the learned single Judge directed that on being so appointed he will not be entitled to any arrear benefit, the seniority should be given as far as practicable. In fact the respondent No. 2 in the present case was the Public Service Commission and therefore the Public Service Commission moved an application for review of the aforesaid judgment that the Public Service Commission is not the authority to create post and to give appointment and prayed that the direction given to the respondent No. 2, Public Service Commission be modified. Accordingly an order was passed on 12th December, 1996 directing that in place of "public Service Commission" the words "concerned authority" should be read and directed the supernumerary post be created within 6 months. Aggrieved against the order passed by the learned single Judge dated 27. 7. 95 and 12th December, 1996 the present appeal was preferred by the State. The appeal was barred by time therefore an application under section 5 of the Limitation Act was filed and the delay was condoned by an order dated 9th March, 1998. ( 2 ) THE brief facts giving rise to this appeal are that by Advertisement No. 2/80 issued on 8th January, 1980 by the Public Service Commission invited applications for direct recruitment to one post of Superintendent, District Jail/deputy Superintendent, Central Jail. The essential qualification prescribed was a degree and administrative experience for three years in responsible capacity. The petitioner in pursuance of that advertisement applied for the post. The essential qualification prescribed was a degree and administrative experience for three years in responsible capacity. The petitioner in pursuance of that advertisement applied for the post. He appeared for the interview but he could not get any intimation from the Public Service Commission, therefore, he wrote on 5th August, 1980 to the Public Service Commission asking for result of the aforesaid interview but no intimation was received. Thereafter he again sent a reminder but without any result. Thereafter another advertisement was issued by the Public Service Commission being Advertisement No. 24/82 on 3rd July, 1982 which was published in Ananda Bazar Patrika on 3rd July, 1982 for another post of whole time Superintendent, District Jail/deputy Superintendent, Central Jail. The petitioner again applied for the aforesaid post and he was again invited for the interview by communication dated 4th October, 1982. Thereafter the petitioner in the month of February, 1983 came to know that one Tridib Kumar Kundal, respondent No. 7 was appointed in pursuance of the Public Service Commission Advertisement No. 2/80. It is submitted that Tridib Kumar Kundal, the respondent No. 7 was placed first in the merit list and was appointed. In the second selection which took place in pursuance of the Advertisement No. 24/82 Anup Tripathi secured the first position and was appointed. It is alleged that Tridib Kumar Kundal who was appointed by the communication dated 23rd February, 1983 joined the post was working as Foreman of Manufacturing Department of Dum Dum Central Jail and he was a person eligible for promotion therefore in terms of the aforesaid advertisement he could not appear in the examination but he was allowed to appear for collateral purposes. It was also contended that he could not have been appointed on the basis of the panel prepared in pursuance of the Advertisement No. 2/80 after a lapse of 2 years. It is also contended that the respondent No. 7, Tridib Kumar Kundal was a matriculate holding a diploma of Textile Technology therefore he was not eligible to be appointed as he was not having any degree. It was contended that the preparation of the second panel during existence of the first panel was not valid and it cannot be given effect to. It was contended that the petitioner secured second position in both the panel in 1980 and 1982. It was contended that the preparation of the second panel during existence of the first panel was not valid and it cannot be given effect to. It was contended that the petitioner secured second position in both the panel in 1980 and 1982. In the whole of the petition the strain was with regard to appointment of the respondent No. 7 on account of his ineligibility and no grounds were raised with regard to eligibility or legality of appointment of respondent No. 8. Only in paragraph 26 the following allegation was made against the respondent No. 8. "your petitioner states and submits that the selection of the respondent No. 7 and 8 by the appointing authorities is the act of arbitrariness and nepotism and is not the selection of the best available person for appointment. " ( 3 ) NOTHING was said about the respondent No. 8's ineligibility for selection or any illegality involved therein. The writ petition was contested by the respondent State. The petitioner thereafter filed a supplementary affidavit. In that affidavit also allegations were levelled against respondent No. 7 only and it only stated that the respondent No. 8 has since been promoted to the post of Superintendent, Central Jail, Dum Dum. In this additional affidavit also nothing had been stated against the eligibility or ineligibility of respondent No. 8. It was submitted on behalf of the State that on the basis of recommendation made by the Public Service Commission with regard to the respondent No. 7, Tridib Kumar Kundal the Government did not issue any appointment order as it had a reservation about the qualification of Tridib Kumar Kundal, but Shri Tridib Kumar Kundal challenged the action of the Government by filling a writ petition being C. R. No. 2556 (W) of 1982 that the selection has taken place and he has been recommended by the Public Service Commission still Government has not issued an appointment order and an interim order was passed on 20th April, 1982 whereby it was directed as under : "there will be an interim order to this extent that the respondents are restrained from appointing any person as the Superintendent or the Deputy Superintendent of the Central Jail excepting the Presidency Jail before appointing the petitioner. The Rule is made returnable six weeks hence. The Rule is made returnable six weeks hence. " ( 4 ) IN the petition the petitioner contended that the diploma in Textile Technology is equivalent to degree, therefore, the Public Service Commission treated Tridib Kumar Kundal as a degree holder and found him eligible for consideration and recommended his name. Thereafter in pursuance of the interim order passed by this Court the Government was left with no choice, an appointment order was issued in favour of the petitioner (Tridib Kumar Kundal) on 23rd February, 1982. Thereafter in pursuance of the second Advertisement No. 24/82 the respondent No. 8 who possessed the M. Sc. degree applied for selection and he was recommended by the Public Service Commission therefore he was appointed by the Government by order dated 16th July, 1993. ( 5 ) IN this background we have to consider the order passed by the learned single Judge. It may be mentioned at the outset that since then the respondent No. 7 (Tridib Kumar Kundal) has already retired from service. The learned single Judge found that Tridib Kumar Kundal was ineligible for appointment. It is also observed that during the currency of the first panel the second advertisement should not have been issued. Therefore, the learned single Judge directed to provide appointment to the writ petitioner by creating a supernumerary post as he secured 2nd position in the panel prepared by the Public Service Commission in both the advertisements issued by them. The learned counsel for the State invited our attention to a notification issued by the State Government whereby a diploma awarded by the Bengal Textile Institute has been declared to be equivalent to a pass degree in Textile Technology for post requiring qualifications in Textile Technology. The relevant notification dated 2nd January, 1954 reads as under :"the diplomas awarded by the Bengal Textile Institute, Serampur and the Textile Institute, Berhampore under the Directorate of Industries, West Bengal, are hereby declared to be equivalent to a pass degree in Textile Technology for posts requiring qualification in Textile Technology. They will also be accepted as sufficient qualifications for posts for which a degree in Techonology is prescribed as an alternative to an ordinary Science degree. Ordered that the above notification be published in the Calcutta Gazette and copies whereof forwarded to other departments of this Government and the Directorates and other officers under this department for information and guidance. They will also be accepted as sufficient qualifications for posts for which a degree in Techonology is prescribed as an alternative to an ordinary Science degree. Ordered that the above notification be published in the Calcutta Gazette and copies whereof forwarded to other departments of this Government and the Directorates and other officers under this department for information and guidance. " ( 6 ) THEREFORE the learned counsel for the State submitted that in view of the fact that the diploma granted by the Bengal Textile Institute has been treated to be equivalent to degree, but this could not be brought to the notice of the learned single Judge, therefore, the learned single Judge has gone wrong. The learned counsel also submitted that in view of the interim order passed by this Court in the writ petition filed by Tridib Kumar Kundal there was no choice left with the Government but to issue the order. Thereafter it is alleged that the writ petition was withdrawn. It was also contended by the learned counsel that the life of panel prepared by the Public Service Commission is only for a period of 15 months. In this connection, learned counsel invited our attention to West Bengal Public Service Commission Rules of Procedure, 1982 which reads as under:"the Commission may, however, prepare a panel or keep a reserve list of suitable candidates. Such a panel or reserve list shall be drawn upon, strictly in order of merit, against future vacancies or requirements reported by Government. Such reserve list or panels in the case of recruitment by selection or promotion shall remain effective for a period not exceeding 15 months. " ( 7 ) THE learned counsel submitted that currency of the panel expired after a period of 15 months as the panel was forwarded by the Commission on 11th March, 1980 and after expiry of period of 15 months that panel expired in which according to the petitioner his name appeared in the second place. Therefore after expiry of the period of 15 months no appointment could have been issued in favour of the petitioner. More so the petitioner filed the writ petition in 1983 much after the expiry of the period of currency of the panel. Therefore after expiry of the period of 15 months no appointment could have been issued in favour of the petitioner. More so the petitioner filed the writ petition in 1983 much after the expiry of the period of currency of the panel. The learned counsel for the State also invited our attention to the writ petition and emphasised that the appointment of respondent No. 8 was no where challenged either on the ground of ineligibility of the qualification or on the ground of any illegality in appointment of Anup Tripathy on the recommendation of the Public Service Commission. Therefore the learned single Judge has gone wrong so far as respondent No. 8's appointment is concerned. As against this the learned counsel for the respondent/petitioner has supported the judgment and submitted that Tridib Kumar Kundal was not qualified as the qualification was a diploma and not equivalent to a degree and therefore he could not have been recommended by the Public Service Commission. It was also contended that as far as currency of period of 15 months is concerned, it is submitted that the appointment of Tridib Kumar Kundal was also after expiry of the period of 15 months. Therefore this ground cannot operate against him. ( 8 ) AFTER hearing the learned counsel of the parties It is apparent that the currency of the period, of the panel expired after 15 months and in view of Rule 17 of the West Bengal Public Service Commission Rules of Procedure, 1982 no writ of Mandamus could have been issued directing the State Government to appoint the writ petitioner to a post in the State. It is true that Tridib Kumar Kundal was also appointed after the period of 15 months but it was done in view of the order passed by this Court on 20th April, 1982. If the order had not been passed by the Court perhaps Tridib Kumar Kundal could not have been appointed to the post as the State Government also had reservation about the qualification of Tridib Kumar Kundal. But by that it cannot give a handle to the petitioner to seek a Mandamus against the Rules. If the order had not been passed by the Court perhaps Tridib Kumar Kundal could not have been appointed to the post as the State Government also had reservation about the qualification of Tridib Kumar Kundal. But by that it cannot give a handle to the petitioner to seek a Mandamus against the Rules. If the matter had been brought to the notice of the learned single Judge that the currency of the panel prepared by the Public Service Commission is of 15 months and it has expired, perhaps no limitation for appointment could have been issued by the learned single Judge. But be that, as it may, Tridib Kumar Kundal was appointed on the so called recommendation of the Public Service Commission (and retired since then ). However, in view of the fact that the currency of the panel was only for a period of 15 month the learned single Judge could not have directed appointment in favour of writ petitioner against the Rules. ( 9 ) NOW coming to the next question of the eligibility of Shri Kundal, though it is academic now as Shri Kundal has since retired, the Public Service Commission in view of the notification as reproduced above felt persuaded that Tridib Kumar Kundal's qualification of diploma in Textile Technology could be treated as a degree and therefore they considered him for appointment. The qualification advertised for the post was as under : "qualification : Essential - (i) Degree; (ii) Administrative experience for three years in a responsible capacity. Desirable : (i) Diploma in Sociology; (ii) Experience of Cottage Industries and in handling men. Age : Ordinarily between 30 and 35 years as on 1. 2. 80. " ( 10 ) THE essential qualification of degree normally constitutes graduation in common parlance. However, it is a matter of construction and the Public Service Commission being a competent body for recruitment of the personnel in the service in the State felt persuaded to accept the diploma of the petition equivalent to degree though such qualification is not mentioned in the qualification. However, on the appreciation of the facts if the Commission has considered this diploma of Tridib Kumar Kundal to be equivalent to degree then normally the Court will not sit on such subtle appreciation of the matter. However, on the appreciation of the facts if the Commission has considered this diploma of Tridib Kumar Kundal to be equivalent to degree then normally the Court will not sit on such subtle appreciation of the matter. The view taken by the Public Service Commission may be incorrect but since then Tridib Kumar Kundal has already retired and the Public Service Commission on the facts before them had put bonafide construction of the diploma of Tridib Kumar Kundal equivalent to the degree, it was not proper for the learned single Judge to interfere in the matter at that stage. More so, we do not wish to express any opinion in the matter at this stage now as Sri Kundal has already retired and the view taken by the Public Service Commission cannot be said to be wholly wrong. ( 11 ) THE next question raised by the learned counsel is that during currency of the first panel the exercise of preparation of second panel should not have been undertaken. It is true that normally when a panel is current second panel should not be prepared unless it is found wanting in some respects. In the present case as the Government entertained a doubt about the eligibility of Tridib Kumar Kundal they did not issue any appointment order but because of the intervening factor of the order passed by this Court Government was left with no choice and issued the order of appointment in favour of the petitioner but meanwhile after expiry of the period of more than 15 months a second advertisement was issued in 1982. Therefore, the action of the Government in issuing the second advertisement for recruitment to the post cannot be said to be bad. In pursuance of that the petitioner himself appeared and did not protest with regard to the preparation of the second panel nor did he file any writ petition before this Court enforcing his right for appointment before expiry of the period of 15 months. Therefore the petitioner is guilty of acquiescence. He took the chance of appearing before the Public Service Commission in pursuance of the second advertisement and failed and he approached this Court challenging appointment of respondent Nos. 7 and 8. This challenge of the petitioner at that stage was belated. Therefore the petitioner is guilty of acquiescence. He took the chance of appearing before the Public Service Commission in pursuance of the second advertisement and failed and he approached this Court challenging appointment of respondent Nos. 7 and 8. This challenge of the petitioner at that stage was belated. Therefore the petition filed by the petitioner was belated as well as the petitioner has acquiesced and took chance of appearing in the second selection. Therefore it is not open for him to challenge the first and the second selection. On account of acquiescence also the petitioner is not entitled to any relief. Hence as a result of the above discussion we allow the State appeal and set aside the order passed by the learned single Judge and dismiss the writ petition. No order as to costs. A. Kabir, J.-I agree. If urgent xerox certified copy of this order is applied for the same may be made available to the learned Advocates for the parties upon compliance of all the formalities. Appeal allowed.